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Date: 07-20-2022

Case Style:

Michael Phillips, Individually and on behalf of any and all Wrongful Death Beneficiaries of Margaret Diane Phillips, Deceased v. Delta Regional Medical Center, Sabitha Pabbathi, M.D., and Allegiance Specialty Hospital;

Case Number: 2018-CA-00931-COA

Judge:

David Neil McCarty; Presiding Judge


Jack L. Wilson
Donna M. Barnes

Concur

Court:

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI


On Appeal From The WASHINGTON COUNTY CIRCUIT COURT



RICHARD A. SMITH
JUDGE

Plaintiff's Attorney:



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Defendant's Attorney:
P. SCOTT PHILLIPS
BRITTANY BROOKS FRANKEL
HARRIS FREDERICK POWERS III
TOMMIE GREGORY WILLIAMS JR.

Description:

Jackson, MS - Medical Malpractice lawyer represented Appellant with filing a suit alleging his mother died as a result of medical malpractice.



Margaret was a sixty-five-year-old woman who was first admitted to DRMC with a
diagnosis of moderate to severe depression, congestive heart failure with diastolic
dysfunction, type-2 chronic kidney disease, generalized debility, a urinary tract infection,
dehydration, arthritis, and anorexia. She developed a bowel obstruction, and imaging showed
1
The summons for Dr. Karim was never filed with the clerk of the court. Because
Dr. Karim was not served in a timely manner, the statutory limitations period on the claim
against him had expired.
2 Phillips’s motion to extend discovery was rendered moot by the grants of summary
judgment.
2
a distended colon. Margaret was prescribed antibiotics for a suspected colon infection.
Further testing and imaging indicated a large bowel obstruction, and she underwent surgery
on December 15, 2015. After her surgery Margaret continued to receive treatment for her
respiratory distress, sepsis, and a large bowel obstruction. During this post-surgery time,
Margaret developed a bradycardic rhythm, which worsened until she died on January4, 2016.
¶5. Around December 27, 2016, Phillips sent a “Notice of Claim” via certified mail for
the treatment of Margaret at DRMC (from December 2015 until her death in January 2016)
to DRMC “c/o Scott Christensen,” the CEO of DRMC. Phillips filed suit on April 4, 2017,
alleging medical negligence against DRMC, Allegiance, Dr. Karim, Dr. Pabbathi, and
various “John Doe” defendants.
¶6. Phillips’s first motion for an extension of time to serve process was granted, and the
new extended deadline for service of process became November 29, 2017. Allegiance and
Dr. Pabbathi were served within the time frame on November 16, 2017. On that same day,
Phillips attempted to serve DRMC through Tommie Williams, the counsel for Allegiance.
Williams was not an authorized representative of DRMC and e-mailed Phillips on November
17, 2017, to inform him that he was not DRMC’s registered agent for service of process.
Phillips then filed a second motion for extension of time to serve process on November 27,
2017, seeking a thirty-day extension. The court never ruled on this motion.
¶7. Phillips again attempted to serve DRMC by serving P. Scott Phillips, the agent for
service of process for Delta Regional Medical Center Auxiliary Inc. However, P. Scott
Phillips is not DRMC’s registered agent for service of process, and Delta Regional Medical
3
Center Auxiliary Inc. is a distinct and separate entity from DRMC. On December 7, 2017,
Phillips filed an amended motion for an extension of time to serve process, seeking a thirtyday extension. The court never ruled on this motion.
¶8. Allegiance responded, denying all allegations of negligence and denying that Dr.
Karimand Dr.Pabbathi were employees of Allegiance. Allegiance requested discoveryfrom
Phillips about the precise allegations of negligence against Allegiance and the identity of
Phillips’s expert. Dr. Pabbathi filed her answer and affirmative defenses, denying all
allegations of negligence and stating that she was an employee of DRMC. In response to
Allegiance’s interrogatories, Phillips identified Dr. Stephen Cohen as his expert.
¶9. DRMC and Dr. Pabbathi filed a joint motion to dismiss or, alternatively, for summary
judgment, arguing that Phillips had failed to properly serve DRMC. Allegiance filed its
motion to dismiss or, alternatively, for summary judgment, arguing that Phillips’s claims of
medical negligence were not supported by expert testimony. DRMC, Dr. Pabbathi, and
Allegiance had a hearing on their respective motions for summary judgment set for May 1,
2018.
¶10. Phillips responded to Allegiance’s motion for summary judgment and filed a motion
for a continuance, seeking to continue the hearings on the Defendants’ motions for summary
judgment. The reasons for the request for a continuance primarily concerned counsel’s
personal circumstances and difficulties.3 He filed an affidavit in support of the motion the
3 These included family emergencies and hospitalizations that kept counsel out of the
office. The motion also alleged that there were substantial staff changes, mishandled
discovery, that counsel’s office had been burglarized, and “other malfeasance.” During the
burglary, office computers had been stolen.
4
next day.
¶11. The Defendants opposed the motion for a continuance. The court denied the request
for continuance at the hearing and also heard arguments on DRMC’s, Dr. Pabbathi’s, and
Allegiance’s pending motions for summary judgment.
¶12. A week after the hearing, Phillips filed a response to DRMC and Dr. Pabbathi’s joint
motion for summary judgment. Phillips also filed motions to disqualify opposing counsel
and to extend discovery. The trial court denied Phillips’s motion for a continuance. The trial
court granted summary judgment for DRMC, Dr. Pabbathi, and Allegiance. Phillips now
appeals the trial court’s rulings.
STANDARD OF REVIEW
¶13. A trial court’s denial of a motion for a continuance is reviewed using an abuse of
discretion standard. O’Hea v. George Reg’l Health & Rehab. Ctr., 276 So. 3d 1266, 1269
(¶6) (Miss. Ct. App. 2018). “The decision to grant or deny a continuance is within the sound
discretion of the trial court and will be reversed solely where the court abuses that
discretion.” Id.
¶14. “A trial court’s grant of summary judgment is reviewed de novo.” Johnson v. Pace,
122 So. 3d 66, 68 (¶7) (Miss. 2013). Summary judgment is proper “if the pleadings,
depositions, answers to interrogatories and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” M.R.C.P. 56(c).
DISCUSSION
5
I. The trial court did not abuse its discretion in denying Phillips’s
motion for a continuance.
¶15. The trial court denied Phillips’s motion for a continuance because the motion itself
did not comply with Mississippi Rule of Civil Procedure 56(f), and it did not show good
cause as to why the previously set and noticed motions for summary judgment should not
have been heard. A review of the record confirms the trial court was within its discretion in
denying the motion for a continuance.
¶16. Rule 56(f) states that the court may order a continuance “to permit affidavits to be
obtained or depositions to be taken or discovery to be had or may make such order as is just.”
M.R.C.P. 56(f). Rule 56(f) provides trial courts the authority to order a continuance and
allow additional time to respond to a summary judgment motion when the party making the
motion “shows a need for additional information in order to respond to the summary
judgment motion.” Robinson v. S. Farm Bureau Cas. Co., 915 So. 2d 516, 520 (¶10) (Miss.
Ct. App. 2005). “A party making a Rule 56(f) motion must present specific facts why he
cannot oppose the motion and must specifically demonstrate” how postponing the ruling on
summary judgment will enable him “to rebut the movant’s showing of the absence of a
genuine issue of fact.” Davis v. Hindman, 138 So. 3d 214, 217 (¶10) (Miss. Ct. App. 2014)
(internal quotation marks omitted).
¶17. By invoking Rule 56(f), Phillips was required to present specific facts showing why
he could not oppose the motion for summary judgment at that time and what he would obtain
in discovery. Phillips’s motion for a continuance did not satisfy these mandatory
requirements. The arguments and reasons for additional time presented in Phillips’s motion
6
for a continuance were unrelated to the claims of the case. Proffered reasons for the request
for a continuance included familyemergencies and hospitalizations,substantialstaff changes,
and a burglary of the office in which computers containing pertinent information for the case
were among the items stolen. Although the personal events and challenges that plagued
counsel were unfortunate, standing alone they do not mandate a continuance. Phillips failed
to articulate specific facts as to why he was unable to properly oppose the motion for
summary judgment and failed to show how postponing the ruling would assist him in
opposing summary judgment. As a result, the trial court was within its discretion to deny the
motion.
¶18. Rule 56(f) works as a safety valve when a nonmovant is unable to respond to summary
judgment motions due to delays in discovery not fully within their control. Smith v. H.C.
Bailey Cos., 477 So. 2d 224, 232-33 (Miss. 1985). Conversely, Rule 56(f) does not protect
dilatory litigants. Gammel v. Tate Cty. Sch. Dist., 995 So. 2d 853, 859-60 (¶19) (Miss. Ct.
App. 2008). The facts of this case reveal that delays in discovery were attributable to
Phillips. The life span of the case was 393 days from its filing on April 4, 2017, to the
motion hearing on May 1, 2018. During this time, Phillips never sent a single interrogatory,
request for production, or request for admission to DRMC, Dr. Pabbathi, or Allegiance. Nor
did Phillips notice any depositions or serve any subpoenas on third parties. Additionally, the
request by Phillips to extend discovery was filed nearly four months after the motions
hearing, and it only sought discovery from DRMC and Dr. Pabbathi “regarding employment
7
or lack of employment of several defendants in this suit.”4 Because the delays in discovery
were attributable to Phillips, the trial court was within its discretion to deny the motion for
a continuance.
¶19. Because Phillips did not follow the procedures outlined in Rule 56(f) and our related
precedent, we affirm.
5
II. The trial court properly grantedsummary judgment to DRMC and
Dr. Pabbathi and appropriately entered a final judgment of
dismissal.
¶20. The trial court found that the statutory limitations period expired on all claims against
DRMC and its employees due to Phillips’s failure to properly serve DRMC with a copy of
the summons and complaint in accordance with Rule 4 of the Mississippi Rules of Civil
Procedure.
¶21. “Service of process is governed by [the] rules of civil procedure.” Nelson v. Baptist
Mem’l Hosp.-N. Miss. Inc., 70 So. 3d 190, 194 (¶14) (Miss. 2011). To obtain personal
jurisdiction over DRMC, a governmental entity, Phillips was required to serve “the person,
officer, group[,] or body responsible for [DRMC’s] administration” with a copy of the
4 After Dr. Pabbathi represented in her answer that she was an employee of DRMC,
DRMC confirmed that Dr. Pabbathi was its employee in its motion to dismiss. Phillips’s
complaint refers to Dr. Pabbathi as an employee of DRMC. Even if Phillips had doubt as
to the employment of Dr. Pabbathi, a continuance would not have created a genuine dispute
of material fact sufficient to allow Phillips to oppose the motion for summary judgment.
5 Phillips also argues that the trial court erred by denying his motion to disqualify
opposing counsel. However, he did not support this argument with any citation to
authorities, statutes, or parts of the record relied on as required by Mississippi Rule of
Appellate Procedure 28(a)(7). As a result of his failure to comply with the appellate rule,
this argument is procedurally barred. See Birrages v. Ill. Cent. R.R. Co., 950 So. 2d 188,
194 (¶14) (Miss. Ct. App. 2006).
8
summons and complaint. M.R.C.P. 4(d)(8).
¶22. The issue in this appeal is not that Phillips untimely served DRMC—the issue is that
Phillips never served DRMC at all. The proper agent for service of process on DRMC was
Scott Christensen, the CEO of DRMC. Despite identifying Christensen in his complaint,
Phillips never properly served him.
¶23. Phillips even obtained an additional thirty days to serve process when his first motion
for an extension of time was granted. Phillips did timely serve process on Dr. Pabbathi and
Allegiance. On the same day Dr. Pabbathi and Allegiance were served, Phillips delivered
process to Williams, counsel for Allegiance, for acceptance on behalf of DRMC. Williams
e-mailed Phillips the very next day, informing him that he was not authorized to accept
service of process for DRMC.
¶24. Several weeks later, and by this time already past the extended deadline of November
29, 2017, Phillips attempted to serve Scott Phillips, the registered agent of Delta Regional
Medical Center Auxiliary, by delivering process for acceptance on behalf of DRMC. Like
Williams, Scott Phillips was not authorized to accept service of process for DRMC.
¶25. Even though Williams and Scott Phillips received a copy of the summons and
complaint, neither were authorized to accept service of process on behalf of DRMC.
Precedent allows agents of apparent authority to accept service of process. Williams v.
Kilgore, 618 So. 2d 51, 56 (Miss. 1992). However, neither Williams nor Scott Phillips had
apparent authority to accept service of process for DRMC. Williams made it explicitly clear
to Phillips in an e-mail soon after receiving process that he was not authorized to accept. It
9
is undisputed that Christensen was the only proper agent for service of process. Because
Christensen was not timely served a copy of the summons and complaint, Phillips failed to
properly serve DRMC.
¶26. Phillips’s insufficient service of process on DRMCwarranted the trial court’s granting
ofsummary judgment to DRMC.6 DRMC, as a community hospital, is a political subdivision
of the State of Mississippi. Because DRMC is a governmental entity, Phillips’s only civil
remedy against DRMC and its employees is provided for by the Mississippi Tort Claims Act
(MTCA). Miss. Code Ann. § 11-46-7(2) (Rev. 2012). Dr. Pabbathi, as an employee of a
governmental entity, here DRMC, could be joined in the complaint against DRMC, but she
is merely a representative of DRMC and immune from personal liability. Estate of Johnson
v. Chatelain ex rel. Chatelain, 943 So. 2d 684, 687 (¶9) (Miss. 2006). Summary judgment
in favor of DRMC due to Phillips’s insufficient service of process also required summary
judgment in favor of Dr. Pabbathi.
¶27. We find that the trial court did not err in granting summary judgment to DRMC and
Dr. Pabbathi because Phillips failed to effect service of process. Accordingly, we affirm.
III. The trial court properly granted summary judgment to Allegiance
and appropriately entered a final judgment of dismissal.
¶28. The trial court granted Allegiance’s motion for summary judgment because Phillips
failed to provide the required expert testimony to support his allegations of medical
6 Even if DRMC was timely served with process, Phillips did not establish a case of
medical negligence against DRMC and Dr. Pabbathi. Phillips failed to provide required
expert testimony that any employees of DRMC, including Dr. Pabbathi, breached any
standard of care that caused or contributed to Margaret’s injuries and death.
10
negligence against Allegiance.
¶29. A plaintiff in a medical malpractice case has the burden to prove “(1) the existence
of a duty by the defendant to conform to a specific standard of conduct for the protection of
others against an unreasonable risk of injury; (2) a failure to conform to the required
standard; and (3) an injury to the plaintiff proximately caused by the breach of such duty by
the defendant.” Johnson v. Pace, 122 So. 3d 66, 68 (¶8) (Miss. 2013). “Expert testimony
establishing these elements is generallyrequired for the nonmoving partyto survive summary
judgment.” Id.; see also Cates v. Woods, 169 So. 3d 902, 909 (¶20) (Miss. Ct. App. 2014).
¶30. As a plaintiff alleging medical malpractice, Phillips had to provide expert testimony
in support of his claim. In response to Allegiance’s interrogatories, Phillips identified Dr.
Stephen Cohen as his expert. Yet Dr. Cohen’s opinions did not address the necessary
elements of medical malpractice and did not address the standard of care owed byAllegiance
and its employees. In fact, the expert’s opinions did not identify any breach of the standard
of care owed by Allegiance and its employees, let alone a breach of the standard of care that
was a direct and proximate cause that contributed to Margaret’s death. Dr. Cohen’s opinions
instead concluded that Dr. Satwinder Singh (a non-party mentioned in Dr. Cohen’s
designation) and Dr. Karimbreached the standard of care and that these breaches directly and
proximately contributed to the death of Margaret. However, neither Dr. Singh nor Dr. Karim
were employees of Allegiance.
¶31. In his response to Allegiance’s motion for summaryjudgment, Phillips argued that Dr.
Cohen’s opinions spoke directly to the negligence of both the physicians and nursing staff.
11
Our de novo review of Dr. Cohen’s opinions shows the elements of medical malpractice were
not met. Dr. Cohen’s opinions spoke only to the breach of standard of care of Dr. Singh and
Dr. Karim, neither of whom were employees of Allegiance.
¶32. In summary, Phillips failed to provide expert testimony that addressed the standard
of care owed by Allegiance and its employees; failed to identify any breach of such standard
of care; and failed to show causation between the breach of duty and injury. Because Phillips
failed to provide the required expert testimony to prove the elements of medical malpractice,
we find that the trial court did not err in granting summary judgment to Allegiance.
Accordingly, we affirm.

Outcome: The trial court’s denial of Phillips’s motion for a continuance was within its
discretion. We affirm the trial court’s holding granting summary judgment to DRMC, Dr. Pabbathi, and Allegiance.

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